Case T-443/08: Action brought on 6 October 2008 — Freistaat Sachsen and Land Sachsen-Anhalt v Commission
Date: 2008-10-06
Institutions: Court of First Instance
Subjects: European Commission, Germany, State aid, action for annulment (EU), air transport, airport, building subsidy, transport infrastructure

20.12.2008

EN

Official Journal of the European Union

C 327/35

Form of order sought

— Annul the decision of the First Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade Marks
and Designs) of 30 June 2008 (Case R 1076/2007-1); and

(a) the measure adopted by Germany in respect of capital
contributions for the construction of a new southern
runway and related airport
infrastructure at Leipzig/
Halle airport constitutes State aid for the purposes of
Article 87(1) EC; and

— order the defendant to pay the costs.

(b) this ‘State aid’ amounts to EUR 350 million;

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: Word mark ‘1-2-3.TV’
for
services in classes 35, 38 and 41 — Application No 3 763 133

Proprietor of the mark or sign cited in the opposition proceedings:
Zweites Deutsches Fernsehen and Televersal Film- und Fernseh-
Produktion GmbH

Mark or sign cited in opposition: National figurative mark ‘1, 2
ODER 3 ZDF-ORF-SFDRS’ for goods and services in classes 3,
5, 9, 12, 14, 16, 18, 21, 24, 25, 26, 27, 28, 29, 30, 32, 35,
38, 41 and 42

— order the Commission to pay the applicants' costs pursuant
to Article 87(2) of the Rules of Procedure of the Court of
First Instance.

Pleas in law and main arguments

The applicants object to the findings in the first part of Article 1
of Commission Decision C (2008) 3512 final of 23 July 2008
Measure No C48/2006 (ex N227/2006) Germany DHL and
Leipzig Halle Airport that the capital contributions granted by
Germany to Leipzig/Halle airport represent State aid to the
airport and that that aid amounts to EUR 350 million.

Decision of the Opposition Division: Opposition partly upheld

The applicants rely on seven pleas in law in support of their
claims:

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: Infringement of Article 8(1)(b) of Council Regu-
lation No 40/94,
there being no likelihood of confusion
between the marks in opposition on account of the differing
overall impression of the marks.

Action brought on 6 October 2008 — Freistaat Sachsen
and Land Sachsen-Anhalt v Commission

(Case T-443/08)

(2008/C 327/63)

Language of the case: German

Parties

Applicants: Freistaat Sachsen and Land Sachsen-Anhalt (repre-
sented by: U. Soltész, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— Annul Article 1 of the Commission's decision of 23 July
2008 pursuant to the first paragraph of Article 231 EC in
so far as the Commission finds that

First, the applicants submit that the rules on State aid are not
even applicable because the airport is not an undertaking within
the meaning of those rules, so far as the expansion of regional
airport infrastructure is concerned.

Second, Flughafen Leipzig/Halle GmbH is a State-owned single
purpose vehicle with an organisational structure governed by
private law which, accordingly, as is generally acknowledged,
cannot be deemed to be a recipient of aid in so far as the State
provides it with the resources required in order to perform its
functions.

Third, the contested decision is inherently contradictory, in that
Flughafen Leipzig/Halle GmbH is simultaneously treated in the
decision both as recipient and donor of aid.

Fourth, the application of the guidelines published in 2005 (1)
to facts which obtained before the guidelines were published is
contrary to the prohibition on retroactivity, the requirement of
legal certainty, the protection of legitimate expectations and the
principle of equality. In the applicant's view, only the Commis-
sion's 1994 guidelines (2) were applicable.

In addition, the applicants state that the new guidelines are
contrary to primary Community law, being factually inapplic-
able and inherently contradictory where regional airport opera-
tors do not have the status of an undertaking. The 2005 guide-
lines also made the construction of airports subject to the rules
on aid, whereas, in the previous guidelines of 1994, this activity
was expressly excluded from the application of the State aid
rules. In view of the diametrically opposed content of the old
and the new guidelines, and the non-revocation of
the
1994 provisions, it is unclear how the financing of airport infra-
structure is intended to be legally assessed.

C 327/36

EN

Official Journal of the European Union

20.12.2008

the

applicants

Sixth,
the Commission has
committed a breach of procedure since it failed to apply the
provisions of Regulation No 659/1999 (3) on existing aid to the
capital contributions which it deemed to be aid.

submit

that

Seventh, the 2005 guidelines also circumvent the division of
powers between the Member States and the Commission, since
the Commission is extending its powers beyond the framework
laid down in the EC Treaty by adopting an expanded interpreta-
tion of the essential criterion of
in Article 87
(1) EC and, as a result of this expanded interpretation, making
procedures which are within the administrative competence of
national authorities subject to review by the Community institu-
tions.

‘undertaking’

(1) Communication from the Commission — Community Guidelines on
financing of airports and start-up aid to airlines departing from
regional airports, OJ 2005 C 312, p. 1.

(2) Communication from the Commission — Application of Articles 92
and 93 of the EC Treaty and Article 61 of the EEA Agreement to
State aids in the aviation sector, OJ 1994 C 350, p. 7.

(3) Council Regulation (EC) No 659/1999 of 22 March 1999 laying
down detailed rules for the application of Article 93 of the EC Treaty.

Pleas in law and main arguments

Applicant for a Community trade mark: S.L.V. Elektronik GmbH

Community trade mark concerned: Figurative mark ‘LINE’ for goods
in class 11 — registration No 3 316 908

Proprietor of the mark or sign cited in the opposition proceedings:
Angel Jiménez Muñoz

Mark or sign cited in opposition: National figurative and word
marks ‘Line’ for goods and services in classes 9, 35, 37 and 38

Decision of the Opposition Division: Opposition upheld

Decision of the Board of Appeal: Annulment in part of the deci-
sion of the Opposition Division

Pleas in law: Infringement of Article 8(1)(b) of Council Regu-
lation No 40/94, as there is no likelihood of confusion between
the marks in opposition. Furthermore, the Board of Appeal did
not proceed on the basis of the trade mark applied for but on
the basis of a design that was not identical.

Action brought on 2 October 2008 — S.L.V. Elektronik v
OHIM — Jiménez Muñoz (LINE)

Action brought on 6 October 2008 — Mitteldeutsche
Flughafen and Flughafen Leipzig/Halle v Commission

(Case T-449/08)

(2008/C 327/64)

(Case T-455/08)

(2008/C 327/65)

Language in which the application was lodged: German

Language of the case: German

Parties

Parties

Applicant: S.L.V. Elektronik GmbH (Übach-Palenberg, Germany)
(represented by: C. König, lawyer)

Applicants: Mitteldeutsche Flughafen AG (Leipzig, Germany),
Flughafen Leipzig/Halle GmbH (Leipzig, Germany) (represented
by: M. Núñez-Müller, lawyer)

Defendant: Office for Harmonisation in the Internal Market
(Trade Marks and Designs)

Other party to the proceedings before the Board of Appeal of OHIM:
Angel Jiménez Muñoz (Gelida, Spain)

Form of order sought

— Annul the decision of the Fourth Board of Appeal of the
Office for Harmonisation in the Internal Market of 18 July
2008 in Case R 759/2007-4 in so far as registration of the
trade mark applied for (003316908) is refused in respect of
lighting apparatus and installations,
‘mains-operated lights,
individual
stage effects lighting apparatus; electric lamps;
parts for the aforesaid goods’; and order the Office for
Harmonisation in the Internal Market to pay the costs of the
proceedings before the Court of First Instance.

Defendant: Commission of the European Communities

Form of order sought

— Annul Article 1 of the Commission's decision of 23 July
2008 (C(2008) 3512 final) pursuant to the first paragraph
of Article 231 EC in so far as the Commission finds that

(a) the measure adopted by Germany in respect of capital
contributions for the construction of a new southern
infrastructure at Leipzig/
runway and related airport
Halle airport constitutes State aid for the purposes of
Article 87(1) EC; and

(b) this ‘State aid’ amounts to EUR 350 million;

— order the Commission to pay the costs of the proceedings,
including the applicants' costs, pursuant to Article 87(2) of
the Rules of Procedure of the Court of First Instance.